In the Matter of the Personal Restraint of Robert Lee Yates, Jr., Petitioner, 177 Wash. 2d 1

Owens, J. ¶1 This is Robert Yates’s first personal restraint petition following our decision affirming his death sentence. Yates’s petition includes 25 grounds for relief raising a host of legal issues, including jury summons and excusal procedures, ineffective assistance of counsel, juror bias, and public trial rights. None of Yates’s claims of error clearly merit either oral review by this court or a reference hearing. Yates’s personal restraint petition is therefore dismissed. STATEMENT OF FACTS ¶2 The details of Yates’s crime are adequately set forth in our opinion in State v.

Yates, 161 Wn.2d 714, 728-33, 168 P.3d 359 (2007), and need not be restated in full here. In brief, in 2000 Yates pleaded guilty in Spokane County Superior Court to 13 counts of aggravated first degree murder and 1 count of attempted first degree murder. Id. at 732. As a result, he was sentenced to 408 years in prison. Id. In 2002, Yates was convicted of two counts of aggravated first degree murder in Pierce County and was sentenced to death. Id. at 732-33. We affirmed Yates’s Pierce County conviction and death sentence in 2007. Id. at 794. Yates filed this timely personal restraint petition in 2008.

Additional facts will be developed as necessary to address specific issues raised by Yates. ISSUES PRESENTED ¶3 1. Were Yates’s constitutional rights violated by Pierce County’s jury summons and excusal procedures and the rate of juror pay? ¶4 2. Does the process of death qualification violate the Washington Constitution? ¶5 3. Was Yates’s right to a public trial violated? ¶6 4. Were Yates’s constitutional rights violated based on juror misconduct? ¶7 5.

Was Federal Bureau of Investigation Special Agent Mark Safarik’s testimony admissible, and did trial and appellate counsel provide effective assistance on this issue? ¶8 6. Was Yates’s right to effective assistance of counsel violated? ¶9 7. Was the jury unconstitutionally prevented from giving meaningful effect to Yates’s mitigation evidence by the questions presented to the jury required by the death penalty statute (often called “the statutory questions”) or the prosecutor’s argument, and did trial and appellate counsel provide effective assistance on this issue? ¶10 8.

Did the State engage in improper argument regarding Yates’s future dangerousness, and did Yates receive effective assistance of counsel on this issue? ¶11 9. Did this court properly conduct proportionality review on direct appeal, and is this court’s method of proportionality review unconstitutional? ¶12 10. Is Washington’s death penalty arbitrary in violation of the Eighth Amendment to the United States Constitution? ¶13 11. Does the cumulative error doctrine apply? ANALYSIS I. Rules Governing Review of a Personal Restraint Petition in a Capital Case A.

Standard of Review ¶14 When considering a timely personal restraint petition, courts may grant relief to a petitioner only if the petitioner is under an “unlawful restraint,” as defined by RAP 16.4(c). RAP 16.4(a). Additionally, the availability of collateral relief is limited in two ways. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 670-72, 101 P.3d 1 (2004) (Davis I). First, “[t]he petitioner in a personal restraint petition is prohibited from renewing an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue.” Id. at 671 (footnotes omitted).

The interests of justice are served by reconsidering a ground for relief if there has been “an intervening change in the law hr some other justification for having failed to raise a crucial point or argument in the prior application.’ ” In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001) (internal quotation marks omitted) (quoting In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999) (Gentry II)).

A petitioner may not avoid this requirement “merely by supporting a previous ground for relief with different factual allegations or with different legal arguments.” Davis I, 152 Wn.2d at 671. Second, new issues must meet a heightened showing before a court will grant relief. For alleged constitutional errors, “[a] petitioner has the burden of showing actual prejudice . . . ; for alleged nonconstitutional error, he must show a fundamental defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007) (Elmore II).

The petitioner must make these heightened showings by a preponderance of the evidence. See Davis I, 152 Wn.2d at 671-72. B. Available Relief ¶15 We have three available options when reviewing a personal restraint petition: (1) dismiss the petition, (2) transfer the petition to a superior court for a full determination on the merits or a reference hearing, or (3) grant the petition. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983); see RAP 16.11(b), 16.12.

Dismissal is necessary where a petitioner fails to make a prima facie showing of actual prejudice for alleged constitutional errors or, for alleged nonconstitutional errors, a fundamental defect resulting in a complete miscarriage of justice. See In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990). Granting the petition is appropriate if the petitioner has proved actual prejudice or a fundamental defect resulting in a complete miscarriage of justice. See In re Pers. Restraint of Pierce, 173 Wn.2d 372, 377, 268 P.3d 907 (2011); Hews, 99 Wn.2d at 88.

Finally, a hearing is appropriate where the petitioner makes the required prima facie showing “but the merits of the contentions cannot be determined solely on the record.” Hews, 99 Wn.2d at 88; see RAP 16.11(b). ¶16 To establish a prima facie showing required for a reference hearing, a petitioner must offer “the facts underlying the claim of unlawful restraint and the evidence available to support the factual allegations.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992) (PRP of Rice). Mere “[b]ald assertions and conclusory allegations” are insufficient to justify a reference hearing.

Id. at 886. For “matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief”; if the “evidence is based on knowledge in the possession of others,” the petitioner may either “present their affidavits” or present evidence to corroborate what the petitioner believes they will reveal if subpoenaed. Id. The corroboration must be more than mere speculation or conjecture. Id. II. Claimed Errors A.

Jury Summons and Excusal Procedures and Juror Pay (Claims 11-13) ¶17 Yates contends that his constitutional rights were violated by Pierce County’s juror summons, excusal, and pay procedures. Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has a right to “a jury drawn from a fair cross

section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). The principle underlying this requirement is that the jury cannot serve its function “to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and . . . professional or perhaps overconditioned or biased response of a judge” if “distinctive groups are excluded from the pool.” Id. at 530. At the same time, “[t]he fair-cross-section principle must have much leeway in application.

The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.” Id. at 537-38. ¶18 A prima facie showing of violating the Sixth Amendment fair-cross-section requirement consists of three elements: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). This is the challenger’s burden. State v. Cienfuegos, 144 Wn.2d 222, 231-32, 25 P.3d 1011 (2001). If the challenger makes the prima facie showing, the State must demonstrate “a significant state interest.” Duren, 439 U.S. at 367-68.

That interest must be “manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” Id. ¶19 Yates makes three claims alleging violation of the fair-cross-section principle of the Sixth and Fourteenth Amendments. Yates fails to establish a prima facie showing as to any of those three claims. In addition, Yates asserts an Eighth Amendment violation based on the same facts underlying his fair-cross-section claims.

The Eighth Amendment claims are discussed together after discussion of the three Sixth Amendment claims. 1. Jury Summons Process (Claim 11) ¶20 Yates first alleges a violation of his constitutional rights on the basis that the jury selection process failed to produce a venire drawn from a fair cross

section of the community. Yates satisfies the first Duren requirement by identifying African-Americans and Latinos as two distinctive groups that were excluded from his venire. However, he fails to meet the second Duren requirement— demonstration that the representation of a “ ‘distinctive’ group in the community” was not “fair and reasonable in relation to the number of such persons in the community.” Id. at 364. Yates provides no census statistics relating to ethnicity of either Pierce County residents or the venire members in his case.

The sole evidence of underrepresentation Yates relies on comes from a declaration by Mary Kay High, Yates’s defense attorney at trial. In her declaration, High states, “To the best of my recollection, African-Americans and Latinos were under-represented on Mr. Yates’ venire. In addition, Asians may have also been underrepresented.” Pet’r’s Reply Br., App. LL.

High based her conclusion on her personal “familiar [ity] with the community and its ethnic diversity” that came from having “lived and worked in Pierce County for many years.” Id. ¶21 High’s declaration fails to establish a prima facie case of a fair-cross-section violation because mere “under-representation,” in the sense that a group’s representation is not at least equal to its proportion of the community, is not sufficient to show that the representation is not “fair and reasonable.” Duren, 439 U.S. at 364. For example, in United States v.

Orange, 447 F.3d 792, 796 (10th Cir. 2006), a defendant presented evidence that in a given year, four groups were underrepresented in jury venires: African-Americans comprised 8.63 percent of the eligible population but only 5.06 percent of the venires, Native Americans comprised 4.27 percent of the eligible population but only 2.64 percent of venires, Asians comprised 1.64 percent of the eligible population but only 0.80 percent of venires, and Latinos comprised 2.74 percent of the eligible population but only 1.49 percent of the venires.

The court held that this failed to establish the second Duren factor (i.e., that the representation of the groups was not fair and reasonable in relation to the population). Id. at 798-99. Although there is no single test to determine whether underrepresentation runs afoul of the fair and reasonable requirement, Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 1393-94, 176 L. Ed. 2d 249 (2010), Orange illustrates that a mere allegation of “underrepresentation” is insufficient to establish the second Duren factor.

Consequently, the mere recollection of underrepresentation is insufficient to establish the second Duren requirement and Yates’s claim fails. ■2. Exclusion of Jurors by Court Personnel (Claim 12) ¶22 Yates next argues that court personnel violated his Sixth Amendment fair-cross-section right by excusing prospective jurors.

This argument suffers from the same defect as above — it fails to establish that the venire did not contain a fair and reasonable representation of any distinctive group. ¶23 Yates asserts that the court personnel’s exclusion of jurors without Yates’s participation violated his due process rights. However, Yates provides no admissible evidence of Pierce County venire selection processes. Helpfully, the State provided documents on juror selection that are admissible under the “business records” hearsay exception, RCW 5.45.020. State’s Corr. Resp. to Pers. Restraint Pet., App. B.

These documents indicate that Pierce County creates a master source list using voter registration, driver’s license, and Washington State identification card databases. Id. App. B(l). That method of creating a jury source list was upheld in Cienfuegos, 144 Wn.2d at 230-32.

At the time of Yates’s trial, jury clerks in Pierce County were authorized to excuse, without judicial oversight, persons who failed to meet the statutory requirements for jury service set forth in RCW 2.36.070, persons who had completed two weeks of jury service within the past year, age-related requests, persons with religious beliefs interfering with jury service, and persons with permanent medical conditions interfering with jury service. State’s Corr. Resp. to Pers. Restraint Pet., App. B(4).

Jury clerks also had authority to grant deferrals based on a variety of factors, such as verified temporary medical conditions preventing service, sole care for dependent family members, and appointments or obligations that could not be canceled without undue hardship. Id. ¶24 Yates argues that this scheme is somehow unlawful. In State v. Rice, 120 Wn.2d 549, 561, 844 P.2d 416 (1993), however, this court squarely held that judges may delegate to clerks the ability to excuse or defer persons summoned for jury service pursuant to RCW 2.36.100.

That statute allows for excusal or deferral “upon a showing of undue hardship, extreme inconvenience, public necessity, or any reason deemed sufficient by the court.” RCW 2.36.100(1). The policies at issue here were adopted by the Pierce County Superior Court Executive Committee and were, therefore, reasons “deemed sufficient by the court.” Yates is therefore incorrect in asserting that the reasons go beyond the statutory excusal factors.

As such, no statutory violation occurred in Yates’s case that might give rise to a due process violation. ¶25 In sum, Yates’s Sixth Amendment fair-cross-section claim fails because he cannot identify a distinct group that was excluded from the jury venire. Additionally, Yates fails to establish a due process claim based on a statutory violation. 3. Juror Pay and Failure To Enforce Summonses (Claim 13) ¶26 Yates’s next fair-cross-section claim focuses on Pierce County’s juror pay and failure to enforce jury summonses, which Yates suggests excludes working class and nonelderly persons.

Yates asserts, based on a hearsay declaration, that Pierce County pays jurors $10 per day and does not pursue prosecution of persons who fail to respond to a jury summons.

Even assuming the nonelderly and working class persons Yates identifies are considered distinct groups under the first Duren requirement, Yates is unable to establish the second Duren element. ¶27 The second Duren element requires that Yates demonstrate “that the representation of [these] group [s] in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community.” Duren, 439 U.S. at 364.

Though Yates includes the percentage of Pierce County residents that are between 18 and 65 years of age and the percentage that are over 65 years of age, he fails to establish the percentage of members of the venire within each of these categories. As to working class persons, Yates fails to show either their percentage of Pierce County residents or their representation in the venire.

Yates’s bare allegation of a discrepancy is insufficient, for “nowhere in our jurisprudence is it suggested a bare allegation that the jury list is not representative is sufficient to bring this issue into play.” Cienfuegos, 144 Wn.2d at 232. Yates therefore fails to make a prima facie showing of a fair-cross-section violation. ¶28 We therefore dismiss Yates’s claims that the Pierce County jury summons and exclusion procedures and jury pay violated his Sixth Amendment right to a venire that represents a fair cross

section of the community. 4. Related Eighth Amendment Claims ¶29 For each of his three fair-cross-section claims, Yates also alleges a violation of the Eighth Amendment guaranty of a reliable sentencing determination in capital cases. The United States Supreme Court has indeed stated that the Eighth Amendment requires greater reliability in capital cases than in noncapital cases. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (lead opinion).

The clear import of the Eighth Amendment reliability principle is that in capital cases, defendants are entitled to have juries make determinations about life and death after full consideration of the circumstances. See id. at 304; Simmons v. South Carolina, 512 U.S. 154, 172, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) (Souter, J., concurring). ¶30 Yates appears to argue that any defect with respect to a jury summons procedure in a capital case necessarily renders the result unreliable and is structural error.

Yates’s briefing is not clear about the nature of the Eighth Amendment reliability-guaranty violation, but he seems to assert that it is established either (1) in the same manner as the Sixth Amendment fair-cross-section violation or (2) by some lesser showing than is required to demonstrate a Sixth Amendment fair-cross-section violation. The first assertion, that the Eighth Amendment reliability error is demonstrated in precisely the same manner as the Sixth Amendment fair-cross-section error, fails for the reasons discussed above.

Insofar as Yates is arguing for a lesser showing, he is, in effect, contending that the same set of facts that are insufficient to make out a Sixth Amendment fair-cross-section claim are sufficient to make out an Eighth Amendment reliability claim in a capital case. Yates presents no applicable precedent and does not set forth what he believes would be the appropriate test. Moreover, this would extend the Eighth Amendment reliability principle well beyond the purpose for which it was conceived and has been employed.

The Sixth Amendment and Eighth Amendment guaranties complement one another in capital cases; there is no basis to conclude that the Eighth Amendment subsumes the Sixth Amendment’s guaranties in capital cases. ¶31 Accordingly, we dismiss all of Yates’s Eighth Amendment claims in claims 11-13. B. Death Qualification Is a Violation of the Washington Constitution (Claim 16) ¶32 Yates begins this claim by asking us to overrule State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), and hold that the process of death qualification violates

article I, sections 21 and 22 of the Washington Constitution. Death qualification, as explained in Brown, is the process by which prospective jurors whose “ ‘views would prevent or substantially impair’ ” their ability to impose the death penalty may be challenged for cause in a capital case. Id. at 593 (internal quotation marks omitted) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)).

The Brown court conducted a Gunwall analysis and concluded that the Washington Constitution provided no broader protection in the context of death qualification than does the Sixth Amendment. Id. at 595-98. ¶33 When a party urges us to overrule an earlier decision, that party must make “ ‘a clear showing that [the] established rule is incorrect and harmful.’ ” City of Federal Way v. Koenig, 167 Wn.2d 341, 346-47, 217 P.3d 1172 (2009) (internal quotation marks omitted) (quoting Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004)).

Yates has not done so here. ¶34 Where Yates’s argument clearly fails is the absence of any showing that the rule announced in Brown is harmful. To do so, Yates would have to show, at a minimum, that the process of death qualification results injuries that are not broadly representative of the community or are otherwise not impartial. Cf. Taylor, 419 U.S. at 530 (emphasizing the importance of a jury pool broadly representative of the community). While he makes conclusory statements to this effect and supports them with concurring and dissenting opinions by Justice Stevens, see Baze v. Rees, 553 U.S. 35, 84, 128 S.

Ct. 1520, 170 L. Ed. 2d 420 (2008) (Stevens, J., concurring); Uttecht v. Brown, 551 U.S. 1, 35, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007) (Stevens, J., dissenting), and while that result is certainly conceivable, but see Lockhart v. McCree, 476 U.S. 162, 174, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (“[Gjroups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors . . . are not ‘distinctive groups’ for fair-cross-section purposes.”), Yates has not made the showing.

Because the burden to demonstrate that the rule is harmful is Yates’s and because he has failed to make that showing, we reject Yates’s request to overturn Brown. As a result, his argument that the process of “death qualification” violates the state constitution fails under the authority of Brown. ¶35 In his reply brief, Yates makes several additional arguments that seem to be as-applied challenges to the process of death qualification. Specifically, he argues that jurors able to follow the law, but who give great weight to particular forms of mitigating circumstances, can be excused for cause.

Yates’s petition, however, clearly alleges only a facial challenge to the process of death qualification. Moreover, an as-applied challenge likely runs afoul of the relitigation bar because Yates unsuccessfully contested, in his direct appeal, the excusal for cause of three jurors, Yates, 161 Wn.2d at 742-46. See Davis I, 152 Wn.2d at 671 (“petitioner in a personal restraint petition is prohibited from renewing an issue that was raised and rejected on direct appeal” except under certain circumstances). Finally, Yates fails to support his as-applied challenge with citation to the record.

Consequently, we dismiss Yates’s claim that the “death qualification” process violates the Washington Constitution. C. Violation of Public Trial Rights (Claim 14) ¶36 Under our state and federal constitutions, criminal defendants have a right to a public trial. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005); U.S. Const. amend. VI; Wash. Const. art. I, § 22 (“In criminal prosecutions the accused shall have the right to ... a speedy public trial.”). This right extends to jury selection. In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004).

Yates argues that his public trial rights were violated in two ways. First, Yates claims that the court closed the courtroom to the public during portions of voir dire. Second, Yates claims that keeping juror questionnaires confidential without a Bone-Club hearing violated his right to a public trial. He has not demonstrated support for either claim. 1. Courtroom Closure ¶37 We must first determine whether the courtroom was actually closed. To prove a closure, Yates relies on two extrarecord declarations: one from Barbara Corey and one from Karen Sanderson.

Unfortunately, we cannot consider the Sanderson declaration because it contains inadmissible hearsay of statements made to Sanderson by one of the jurors. Am. Pers. Restraint Pet. & Supporting Br., App. Z. Such hearsay does not constitute “competent, admissible evidence” that is necessary to justify a reference hearing. PRP of Rice, 118 Wn.2d at 886. ¶38 Turning to the Corey declaration, we find that it fails to establish a prima facie showing of a closure.

In her declaration, Corey makes three relevant statements: [1.] During selection and after individual voir dire, the court room was locked until the venire was seated. I do not recall when the courtroom was reopened. [2.] During individual voir dire, I do not recall members of the public being present in the courtroom. [3.] During the time that Mr. Yates’ case was tried, it was not unusual in Pierce County Superior Court for the public to be excluded from the courtroom during voir dire on sensitive topics. Am. Pers. Restraint Pet. & Supporting Br., App. Y at 1.

The second and third of these statements clearly do not establish a closure. With respect to the second statement, evidence of absence is not evidence of exclusion. In other words, Corey never states that members of the public wanted to be present but were not allowed in. Similarly, the third statement establishes only that closures were not unusual, not that one occurred in Yates’s case. ¶39 The first statement requires further analysis but also ultimately fails. Corey states that “[d]uring selection and after individual voir dire, the court room was locked until the venire was seated.” Id.

Though artfully worded, this statement ultimately says very little. The statement refers to the seating of the venire, not the jury; therefore, it does not suggest that the public was excluded during the jury selection process. Instead, Corey’s statement merely suggests, at most, that the door to the courtroom was locked each day until the members of the venire sat down.

This is consistent with the declaration of Lettie Devish, Judge McCarthy’s judicial assistant, in which Devish states: I left the courtroom locked until I gathered the venire panel from jury administration and lined them up in numerical order .... There was room for the venire and spectators in the courtroom, and both were present.... The courtroom was kept locked when the court was not in session, such as during the lunch break and at the close of the day. State’s Corr. Resp. to Pers. Restraint Pet., App.

F at 2. ¶40 The relevant question, then, is whether locking the courtroom until the members of the venire have taken their seats is a closure of the courtroom. A commonly used test to determine if a closure occurred is the experience and logic test. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012). Under that test, whether a closure occurs depends on (1) “ ‘whether the place and process have historically been open to the press and general public’ ” and (2) “ ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ” Id. (quoting Press-Enter. Co. v.

Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). It is Yates’s burden to satisfy the experience and logic test, which he fails to do. At no point does he argue that the venire lining up and taking their seats in any way “plays a significant positive role in the functioning of the particular process in question.” Pres-Enter. Co., 478 U.S. at 8. Accordingly, Yates’s claim fails because no closure occurred. 2. Confidential Questionnaires ¶41 Yates’s second public trial contention concerns confidential juror questionnaires.

The trial court, based on a stipulation by the parties, entered an order sealing the juror questionnaires on August 13, 2002. No Bone-Club analysis was conducted on the record. See 50 Verbatim Report of Proceedings (VRP) at 4333-4537. However, this court recently determined, in State v. Beskurt, 176 Wn.2d 441, 293 P.3d 1159 (2013), that the sealing of juror questionnaires without a Bone-Club hearing is not a violation of a defendant’s public trial rights.

The court concluded that no closure occurred because the questionnaires themselves had no independent effect on the trial; though the questionnaires served as a “framework” for oral voir dire, the oral portion of voir dire provided the basis for any for-cause challenges, and that portion of voir dire was open to the public. Id. at 447. Since there was no closure, the defendant’s

article I,

section 22 right to a public trial was not violated. Id. at 447-48. ¶42 Under Beskurt, Yates has failed to make a prima facie showing that his right to a public trial was violated. Yates has failed to show that a closure occurred because he has not shown, or even attempted to show, that any for-cause challenge was based on the jury questionnaires, as opposed to oral voir dire, which was open to the public. Yates simply assumes that the sealing of juror questionnaires is a per se courtroom closure.

Because Yates has failed to show that a closure occurred, he has failed to establish a violation of his right to a public trial. D. Juror Bias Claim (Claim 15) ¶43 Yates argues that he was denied his constitutional right to a fair trial because one of the jurors in his case was biased. Yates claims that one of the jurors was biased because she stated, during trial, that she intended to write a book about the trial after it was over.

As support for this claim, Yates includes a declaration from juror William Good, which states: During the trial, there was a woman on the jury who said that she was planning to write a book about the trial after it was over. . . . The woman was white and was younger than me. Based on the juror’s statements and actions, I believed that she was re-creating her notes outside of court from events inside court so that she would have material for her book. Pet’r’s Reply Br., App. MM. ¶44 A defendant is guaranteed a fair trial before an impartial jury by the Sixth and Fourteenth Amendments. Ross v.

Oklahoma, 487 U.S. 81, 85, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988). This right is violated by the inclusion on the jury of a biased juror, whether the bias is actual or implied. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (inclusion of a single biased juror invalidates death sentence); Smith v. Phillips, 455 U.S. 209, 221-24, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (O’Connor, J., concurring) (noting that implied bias may violate a defendant’s Sixth Amendment rights). A juror with a direct financial incentive is deemed biased. See United States v.

Polichemi, 219 F.3d 698, 704 (7th Cir. 2000). ¶45 The State correctly argues that this claim is too speculative (i.e., Yates has not established a prima facie case). Even accepting all of Good’s statements as true and giving them a liberal

interpretation, Yates has provided no evidence whatsoever that the other juror’s intention to write a book biased her in any way. While it is entirely conceivable that such an intention could result in bias, see Dyer v. Calderon, 151 F.3d 970, 982 n.19 (9th Cir. 1998) (“[A] juror who . . . secretly plans to write a memoir of the experience might then vote differently to provide drama, or he might inject personal prejudice into the jury room in an attempt to jazz up the deliberative process.”), it is Yates’s burden to demonstrate prima facie evidence of that bias, and he has failed to do so.

As such, Yates is not entitled to a reference hearing and this claim is dismissed. E. Safarik Testimony (Claims 2-6) ¶46 Yates contends that several statements by Safarik, made during his testimony about his linkage analysis, constituted “unscientific psychological testimony through an unqualified witness.” Am. Pers. Restraint Pet. & Supporting Br. at 46.

Yates argues that admission of that testimony was erroneous and in violation of the Eighth Amendment, that trial counsel was ineffective in failing to demand a Frye hearing and in failing to object, and that Yates’s appellate counsel was ineffective in failing to raise the issue on direct review. ¶47 To begin, it is helpful to review the challenged statements in context. Safarik was called to testify about the “linkage assessment” he performed on the crimes committed in Spokane and Pierce Counties. 65 VRP at 6846-50.

According to Safarik, linkage assessment focuses on “three manifestations of behavior”: “modus operandi,” “ritualistic behavior,” and “staging behavior.” Id. at 6846. Safarik defined “modus operandi” (MO) as behavior that a[n] offender perceives as necessary for the successful completion of a crime. People who commit crimes, any types of crimes, want to be successful. They don’t want to get caught. So what they try to do is they try to engage in behaviors that will make them successful in committing this crime. Id. at 6859. Safarik testified this was important because “typically MO behaviors are goal driven.

They’re conscious behaviors engaged in by the offender to be a successful criminal.” Id. at 6860. Turning to the second manifestation of behavior that looked to be a linkage analysis, Safarik explained that “ritualized behavior is that behavior which is unnecessary for the successful accomplishing of the crime.” Id. at 6861. Ritualized behavior, according to Safarik, is “need-driven, it’s emotionally psychologically driven, and so it shows up over and over again.” Id. at 6863.

Finally, Safarik defined “staging behavior” as “a conscious attempt by the offender to redirect the investigation away from what law enforcement would probably consider to be the most logical suspect.” Id. at 6865. ¶48 In addition to the three focuses, Safarik testified that in performing a linkage analysis, he looks for a “precursing event,” which is simply “something that happens in the offender’s life” that “caused the offender to act out.” Id. at 6868, 6870.

This is relevant, Safarik explained, because “[tjypically ... in the signature violent crimes that we are working in our unit, homicides and serial sexual assaults, and this is documented in the research literature as well, that there typically is a[n] event that occurs in the offender’s life; we call it a precursing event.” Id. at 6868-69. The defense objected to this testimony, and the trial court overruled the objection based on the State’s assurance that “[t]his is not case specific and there will be no testimony about that in this case.” Id. at 6869.

Shortly thereafter, Safarik testified that he “didn’t have materials in this case that would enable [him] to make that type of analysis or opinion.” Id. at 6870. ¶49 In this personal restraint petition, Yates complains about four of Safarik’s statements. First, Yates complains about Safarik’s statement that “ ‘[pjeople who commit crimes . . . want to be successful’ ” and “ ‘don’t want to get caught.’ ” Am. Pers. Restraint Pet. & Supporting Br. at 41 (quoting 65 VRP at 6859).

Second, Yates complains about Safarik’s additional statement that MO behaviors are typically “ ‘goal driven’ ” and “ ‘conscious behaviors.’ ” Id. (quoting 65 VRP at 6860). Third, Yates now takes issue with Safarik’s testimony that ritualized behavior is “ ‘need-driven’ ” and “ ‘emotionally psychologically driven.’ ” Id. (quoting 65 VRP at 6863). Fourth, Yates complains about Safarik’s testimony that there is typically a precursing event in the types of violent crimes that Safarik’s unit worked on.

Id. at 42. ¶50 In reality, Yates’s four claims assert that the linkage analysis was unreliable and therefore inadmissible. Though Yates purports to challenge only four specific statements and the prejudice they caused at sentencing, those statements were part and parcel of the linkage assessment — the statements defined the terms at the core of the linkage assessment. If, in fact, they were inadmissible, the linkage assessment itself would have been inadmissible. To the extent Yates claims the statements went beyond the linkage assessment and commented on his psychology, he simply misreads the testimony.

Safarik testified that he was not a psychologist and that he was “not making any diagnosis about any individual’s personality or mental illness or personality disorder.” 65 VRP at 6847. In context, the challenged statements were clearly about offenders in general and not about Yates in particular. ¶51 First, we note that Yates’s linkage assessment claims are not subject to the relitigation bar. “A claim rejected on its merits on direct appeal will not be reconsidered in a subsequent personal restraint petition unless the petitioner shows that the ends of justice would be served thereby.” In re Pers.

Restraint of Jeffries, 114 Wn.2d 485, 487, 789 P.2d 731 (1990). Merely “supporting a previous ground for relief with different factual allegations or with different legal arguments” is insufficient to constitute a new issue. Davis I, 152 Wn.2d at 671. On direct appeal, Yates challenged the admission of Safarik’s testimony on three bases:

(1) Yates had not placed his identity at issue, (2) the testimony created an improper opinion as to guilt, and (3) the testimony constituted improper propensity evidence. Yates, 161 Wn.2d at 762-63; Br. of Appellant, State v. Yates, No. 73155-1, at 137-46. We rejected Yates’s challenges to Safarik’s testimony. Yates, 161 Wn.2d at 763.

In this personal restraint petition, Yates makes a new claim— that the linkage analysis was unreliable. ¶52 While seemingly similar to the claims he raised on direct appeal, Yates’s new claims against Safarik’s testimony are qualitatively different from those presented on direct review.

Though the result of success on his legal arguments on direct appeal would have been identical to the result of success on the issue raised on collateral attack, reliability of testimony is an issue discrete from an argument that the same testimony is irrelevant as being not at issue, constituting an improper opinion, or being impermissible propensity evidence. The State glosses over this distinction by stating that “this Court found that Safarik’s testimony was properly admitted on direct review and that there was no error.” State’s Corr. Resp. to Pers. Restraint Pet. at 93. This is imprecise.

On direct review, we held that Safarik’s testimony was not improperly admitted for reasons alleged by Yates. Yates, 161 Wn.2d at 762-63. We could not, nor did we purport to, go further — put differently, we did not decide issues not before us. Had Yates challenged the reliability of the linkage analysis on direct appeal, the relitigation bar would apply here, but he did not. ¶53 In evaluating Yates’s claim, we cannot help but focus on his failure to make the required showing of prejudice. Yates alleges Sixth and Eighth Amendment violations from admission of the testimony.

Accordingly, Yates must prove that the violation resulted in actual prejudice. See Elmore II, 162 Wn.2d at 251. According to Yates, the prejudice resulted from Safarik testifying “that Yates’s state of mind was especially egregious — perhaps even more egregious than other serial killers.” Am. Pers. Restraint Pet. & Supporting Br. at 46. This statement simply misrepresents Safarik’s testimony. In context, the challenged comments plainly referred to criminal behaviors generally, not to Yates in particular.

In no way did Safarik suggest that Yates was more culpable than other serial killers — Safarik merely stated that he lacked materials to determine whether one common trait of serial killers was present. See 65 VRP at 6870. As a result, Yates has failed to show actual prejudice from the admission of Safarik’s testimony. Similarly, Yates cannot establish that his appellate counsel was ineffective for failing to raise this issue, as any error would necessarily have been deemed harmless for the same reason that there is no prejudice here. See In re Pers.

Restraint of Dalluge, 152 Wn.2d 772, 788, 100 P.3d 279 (2004) (setting forth the rule that prejudice exists when a defendant shows that there is a reasonable probability that but for counsel’s errors, the proceeding would have resulted differently). The absence of prejudice is fatal to each of Yates’s claims stemming from Safarik’s testimony, and we dismiss each of his challenges. F. Ineffective Assistance of Counsel (Claims 1, 10, 17) ¶54 Ineffective assistance of counsel claims are governed by the analytical framework established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The convicted defendant must show that (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “the deficient performance prejudiced the defense.” Id. at 687-88. ¶55 To establish deficient performance, the defendant must overcome “a strong presumption that counsel’s conduct” was reasonable. Id. at 689. Conduct is evaluated by its reasonableness at the time it was undertaken. Id.

To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome”; the “defendant need not show that counsel’s deficient conduct more likely than not altered the outcome of the case.” Id. at 693-94.

This assessment is made by weighing “the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the [collateral] proceeding ... against the evidence in aggravation.” Williams v. Taylor, 529 U.S. 362, 397-98, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). 1. Penalty Phase (Claim 1) ¶56 Yates first argues that he received ineffective assistance of counsel in the penalty phase of trial. He alleges that his counsel failed to (

a) investigate the possible presence of a mental disease or defect or neuropsychological deficit, (

b) investigate mitigation testimony by family members of Yates’s Spokane victims, (

c) investigate information humanizing Yates, (

d) investigate evidence of Yates’s future dangerousness in prison, and (

e) present evidence of Yates’s cooperation with law enforcement and decision to plead guilty to the Spokane murders. ¶57 The United States Supreme Court has repeatedly addressed defense counsel’s duty to investigate potential mitigating evidence in capital cases. See, e.g., Bobby v. Van Hook, 558 U. S. 4, 130 S. Ct. 13, 175 L. Ed. 2d 255 (2009) (per curiam); Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

An inadequate investigation of mitigating evidence may cause counsel’s performance to fall below an objective standard of reasonableness. Williams, 529 U.S. at 395-96. “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at 533. Rather, the inquiry focuses on whether “ ‘reasonable professional judgments support the limitations on investigation.’ ” Id. (quoting Strickland, 466 U.S. at 691).

This requires the court to “conduct an objective review of [counsel’s] performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’ ” Id. at 523 (quoting Strickland, 466 U.S. at 688-89). This includes consideration of “whether the known evidence would lead a reasonable attorney to investigate further.” Id. at 527.

In addressing the prejudice caused by the failure to conduct a competent investigation, the fact that counsel employed a reasonable mitigation theory is irrelevant. Sears v. Upton, 561 U.S. 945, 130 S. Ct. 3259, 3265, 177 L. Ed. 2d 1025 (2010) (per curiam). a. Failure To Investigate Neuropsychological Impairments ¶58 Yates has not made a prima facie showing that counsel’s failure to investigate mental and neuropsychological deficits constituted ineffective assistance.

Yates suggests that trial counsel’s investigation was unreasonable because (1) trial counsel did not request testing by the neuropsychologist to evaluate neuropsychological deficits in the temporal lobe and (2) trial counsel did not investigate whether Yates suffered from a sexual disorder that contributed to the murders. Yates’s trial counsel did conduct an inquiry into Yates’s mental health. Trial counsel retained a neuropsychologist, Dr. Rich Kolbell, who tested Yates and produced a report consisting of 87 pages of materials.

That report is not included in the record but was relied on by experts retained by Yates in this personal restraint petition. It also appears that trial counsel retained a psychiatrist, Dr. Dorothy Lewis, who conducted an evaluation of Yates and prepared a draft report. This report also does not appear in the record on review. ¶59 In his attempt to show deficient performance, Yates relies on a declaration from trial counsel. At most, that declaration shows that trial counsel failed to direct which tests the neuropsychologist performed. This is evident from two statements.

First, trial counsel states that we did not retain an expert to opine whether Mr. Yates suffers from a sexual deviancy disorder. Further, because we did not retain an expert to evaluate and form an opinion about whether Mr. Yates’ [sic] suffers from a sexual disorder, no expert evaluated whether there was any connection between any sexual disease or disorder and the multiple homicides. Am. Pers. Restraint Pet. & Supporting Br., Ex. A at 3. This statement does not explain the purpose for which Dr.

Lewis was retained. ¶60 Second, trial counsel states: I recognized that neuropsychological dysfunction often plays a role in homicides and can be a powerful mitigating factor. . . . For that reason we retained a neuropsychologist who tested Mr. Yates. I did not direct that expert regarding which tests to perform. More specifically, I did not request that he administer tests designed to evaluate whether Mr. Yates suffers from neuropsychological deficits in the temporal lobe region of the brain. . . .

There was no tactical reason for our team not to conduct a neuropsychological evaluation focusing on temporal lobe dysfunction. Id. In this statement, trial counsel acknowledges that he did conduct an investigation into neuropsychological dysfunction. All trial counsel now acknowledges is a failure to have directed the expert as to which neuropsychological tests to employ. ¶61 On collateral review, Yates has included three new mental health evaluations. Dr. Fred Berlin, based in part on the earlier report by Dr.

Kolbell, concluded that Yates was not “fully capable of completely and permanently stopping his actions on his own” but acknowledged that “there would likely have been disagreements” about the extent to which Yates’s volitional control was compromised. Id. Ex. C at 4-6. Dr. Dale Watson, a clinical and forensic psychologist, performed a battery of tests on Yates and determined that “there were indications of mild neuropsychological dysfunction” and “striking implications of subcortical dysfunction.” Id. Ex. E at 9. Dr.

Ruben Gur conducted neuroimaging studies of Yates’s brain, including magnetic resonance imaging and positron emission tomography. These tests indicated multiple abnormalities in regions of Yates’s brain “that are very important for regulating behavior.” Pet’r’s Reply Br., Ex. KK at 4. ¶62 Notwithstanding the new evaluations, Yates cannot show deficient performance by trial counsel. In light of the investigation conducted by trial counsel, including retention of appropriate experts, Yates cannot overcome the “strong presumption” of effective representation.

Strickland, 466 U.S. at 689. ¶63 While interesting and while presentation of this information to the jury might have resulted in a different outcome, Yates has not shown that based on the information available to trial counsel, failure to further investigate neuropsychological deficits was unreasonable.

This is not a case in which trial counsel failed to investigate a category of mitigating evidence, see Wiggins, 539 U.S. at 523-24; Williams, 529 U.S. at 395-96, or failed to take even basic steps to investigate, see Rompilla, 545 U.S. at 382-84 (trial counsel failed to examine defendant’s court file or prior conviction despite knowing prior convictions were a basis relied on by state to impose the death penalty). Nor was the expert appointed too late to provide meaningful benefit to the case. See In re Pers.

Restraint of Brett, 142 Wn.2d 868, 878, 16 P.3d 601 (2001). ¶64 Trial counsel’s duty is to retain qualified experts and provide those experts with relevant information; once appropriate experts are retained, determining what specific tests to perform may be properly left to those experts. Davis I , 152 Wn.2d at 733 (“It was clearly within the ‘ “wide range of professionally competent assistance” ’ for defense counsel ‘to rely on properly selected experts.’ ” (quoting Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690))).

Yates’s implication that trial counsel should have specifically directed the retained neuropsychologist to look for “deficiencies in temporal lobe functioning,” Am. Pers. Restraint Pet. & Supporting Br. at 30, is unavailing. Similarly, failure to retain an expert for the specific purpose of opining on whether Yates possessed a sexual disorder, such a necrophilia, does not render counsel’s performance deficient where an expert who is retained possesses the ability to make such a diagnosis.

Failure to micromanage the testing performed by experts is different in kind from failing to provide those experts with information needed to conduct their evaluations, which would constitute deficient performance. Cf. Wallace v. Stewart, 184 F.3d 1112, 1116 (9th Cir. 1999) (noting counsel’s “professional responsibility to investigate and bring to the attention of mental health experts ... facts that the experts do not request”). ¶65 Trial counsel’s declaration does not suggest a different conclusion.

The declaration does not preclude the inference that although not hired for the purpose of opining whether Yates suffered from a sexual deviancy disorder, Dr. Lewis was capable of diagnosing Yates with a sexual deviancy disorder and, in fact, may have done so. Indeed, such a diagnosis would at least be suggested by the fact that Yates committed multiple acts of necrophilia. These acts were known to Yates’s counsel, and there is no allegation that counsel failed to disclose these acts to Dr. Lewis.

Tellingly, trial counsel does not state either (1) that he failed to investigate the presence of the sexual deviancy disorder or (2) that any failure lacked a tactical justification. ¶66 Yates has not made a prima facie showing of ineffective assistance of counsel. Trial counsel retained both a neuropsychologist and a psychiatrist prior to the mitigation phase of trial. Both experts prepared reports for defense counsel.

Yates has not shown that trial counsel either failed to provide experts with relevant information or imposed any limitations on the scope of the experts’ evaluations, much less that those limitations were unreasonable. See Davis I, 152 Wn.2d at 724-26, 731-33 (finding effective assistance where counsel imposed limitations on the work of experts). Accordingly, Yates has not made a prima facie showing of deficient performance based on failure to investigate neuropsychological deficits or the presence of sexual deviancy disorders. His ineffective assistance of counsel claim necessarily fails. b.

Testimony by Victims’ Family Members ¶67 In contrast, Yates has made a prima facie showing that his trial counsel’s performance was deficient based on counsel’s failure to investigate the possibility of having victims’ relatives testify against imposing the death penalty. “Prevailing norms of practice as reflected in American Bar Association [(ABA)] standards and the like .. . are guides to determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at 688 (internal citations omitted). The relevant ABA guidelines are those in effect at the time of trial. Bobby, 558 U.S. at 7.

Under the ABA guidelines in effect in 2002, at the time of Yates’s trial, the guidelines stated that “[c]ounsel should consider interviewing potential witnesses, including . . . members of the victim’s family opposed to having the client killed.” Am. Bar Ass’n, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(D)(3)(C), at 94-95 (1989).

And yet trial counsel acknowledges: I did not investigate, nor cause an investigation to be conducted into whether any of the survivors of the victims of the Spokane County murders would be willing to testify in Pierce County that the information regarding the homicides provided by Mr. Yates, or his acceptance of responsibility through his guilty pleas, provided some degree of closure and/or measure of comfort for the victims’ survivors. Am. Pers. Restraint Pet. & Supporting Br., Ex.

A at 4. ¶68 Focusing on counsel’s perspective at the time of trial, counsel knew that the State intended to use the 13 murders to which Yates had pleaded guilty as an aggravating circumstance, as it had alleged that the two Pierce County murders were “part of a common scheme or plan.” RCW 10.95.020(10). Counsel was thus undoubtedly aware that these murders posed an additional obstacle to demonstrating “sufficient mitigating circumstances to merit leniency.” RCW 10.95.030(2).

The possible measure of comfort and relief that pleading guilty would provide to surviving relatives of the victims would, while perhaps not sufficient standing alone, provide one source of mitigating evidence. And yet counsel did not even explore the possibility that among the many surviving family members of Yates’s victims at least some would be willing to testify on his behalf. Trial counsel “ignored pertinent avenues for investigation of which he should have been aware.” Porter v. McCollum, 558 U.S. 30, 40, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009).

This failure to investigate is deficient performance. ¶69 Nevertheless, Yates cannot establish prejudice from this failure to investigate. Yates has provided a declaration of one victim’s mother who stated that his decision to plead guilty “provided [her] with some solace” and that she would have so testified at trial. Am. Pers. Restraint Pet. & Supporting Br., Ex. F at 1. However, this is not a case where the jury “heard almost nothing that would humanize [Yates] or allow [it] to accurately gauge his moral culpability.” Porter, 558 U.S. at 41; see infra pp. 44-45 (discussing humanizing evidence presented).

Instead, this additional evidence is the sort that “would barely have altered the sentencing profile presented to the” jury. Strickland, 466 U.S. at 700. Weighing against this merely marginally beneficial additional evidence is the enormity of Yates’s crimes — the murders of 15 human beings. In addition, had the evidence been fully investigated and presented at trial, it would have opened the door to damaging rebuttal testimony from relatives of Spokane victims who were not comforted by his decision to plead guilty in exchange for a sentence of life imprisonment without the possibility of parole.

See State’s Corr. Resp. to Pers. Restraint Pet., Apps. H, Q. c. Presentation of Evidence of Cooperation with Spokane Police ¶70 Yates alleges — with minimal discussion— that trial counsel was deficient in failing to present evidence that he confessed, pleaded guilty in Spokane County, and cooperated with law enforcement. In fact, this evidence was before the jury. See 54 VRP at 5216-17 (admitting, in guilt phase, Spokane County statement on plea of guilty). What Yates appears to be complaining about is that his attorney failed to highlight this evidence to the jury as a theme.

Yates cannot overcome the “strong presumption” of nondeficient performance, particularly in light of the fact that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 689-90. ¶71 Yates makes no argument that trial counsel’s failure to emphasize such evidence was not the product of strategic thinking. Trial counsel’s declaration does not discuss the presence or absence of strategic thinking with respect to this decision. Counsel’s decision not to focus on this evidence could have served several valid strategies.

First, counsel might have sought to avoid emphasizing the additional murders Yates had committed. Second, counsel might have believed such an argument was unavailing — and therefore a waste of time — in light of the prosecution’s juxtaposition of Yates’s failure to take responsibility for, and reveal the locations of the remains of, his Pierce County victims, Mercer and Ellis. While these strategies ultimately proved unsuccessful, courts must make “every effort... to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689. d.

Humanizing Evidence ¶72 Yates next contends that trial counsel’s failure to “develop [ ] and present [ ]” additional evidence to humanize him rendered counsel’s performance ineffective. Am. Pers. Restraint Pet. & Supporting Br. at 36. As a starting point, trial counsel presented numerous witnesses tending to humanize Yates, including family members, high school sports coaches, fellow members of the military who had served with Yates, and clergy and prisoners who had had religious discussions with Yates. Further, Yates delivered an allocution to the jury.

The additional evidence collateral counsel contends should have been presented includes Yates’s daughters, son, stepmother, half sisters, brother-in-law, aunt, uncle, cousins, aunt’s sister, and school classmate. ¶73 Trial counsel was “obviously interested” in presenting testimony of family members but, after investigating that avenue, discovered that “[m]ost of Mr. Yates’ family members were understandably conflicted.” Id. Ex. A at 4. As a result, trial counsel decided not to call additional family members during the penalty phase. Id.

Presenting testimony by conflicted family members, subject to cross-examination, might have prompted the prosecutor to argue that Yates had also victimized his own family through his actions. Counsel’s strategic decision is not objectively unreasonable. See Stenson, 142 Wn.2d at 741-47 (holding that failure to present evidence rebutting lack of remorse was not deficient where counsel made a substantial attempt to humanize defendant). e. Future Dangerousness Investigation ¶74 Yates argues that trial counsel’s investigation of Yates’s future dangerousness was deficient and prejudicial.

Trial counsel investigated this issue and, indeed, presented testimony during the penalty phase from eight corrections officers and a records custodian concerning Yates’s good behavior in jail. Counsel also presented testimony from the manager of the intensive management unit of the Washington State Penitentiary concerning the infrequency of escapes and assaults. Yates contends it was deficient performance for trial counsel to not additionally hire an expert to assess Yates’s future dangerousness.

Yates relies on two pieces of evidence: (1) trial counsel’s declaration that his failure to retain an expert was not the product of a tactical decision but, rather, the result of his failure to “consider it,” Am. Pers. Restraint Pet. & Supporting Br., Ex. A at 4; and (2) a report by Dr. Ronald Roesch that Yates “presented ... a low risk for violence in prison,” id. Ex. U at 1. ¶75 Trial counsel’s performance did not fall below an objective standard of reasonableness. This was not a case where counsel “ignored pertinent avenues for investigation,” Porter, 558 U.S. at 40.

Counsel conducted a sufficiently “thorough investigation of law and facts.” Strickland, 466 U.S. at 690. Though counsel’s failure to retain an expert on future dangerousness was not a conscious decision (i.e., not the product of strategic thinking) and “post hoc rationalization [s]” are inadequate to justify the absence of a strategic decision, Wiggins, 539 U.S. at 526-27, this demonstrates deficiency of an investigation only if it is not reasonably complete.

For example, in Wiggins, trial counsel conducted a minimal preliminary investigation into a capital defendant’s life history, obtaining a one-page account of his personal history from the presentence investigation report prepared by the Maryland Division of Parole and Probation and records relating to the defendant’s placements in the foster care system. Id. at 518, 523.

The Court held that failure to acquire more than this “rudimentary knowledge” of the defendant’s history was deficient performance, particularly in light of the fact that these records contained leads toward potentially fruitful sources of additional facts. Id. at 524-25.

Here, by contrast, there were not additional facts to be adduced by further investigation, merely an expert’s bolstering of inferences that could already be drawn from the extensive evidence already discovered. ¶76 Moreover, even if trial counsel’s failure to retain an expert to further investigate Yates’s future dangerousness was deficient performance, it was not prejudicial. The additional mitigating evidence counsel failed to discover was largely duplicative of evidence before the jury.

Reweighing “the evidence in aggravation against the totality of available mitigating evidence,” id. at 534, there is simply no reasonable probability that the jury would have returned a different verdict. This is particularly true because, as the State points out, introduction of the study would likely allow for damaging rebuttal evidence. 2. Guilty Plea in Spokane County (Claim 10) ¶77 Yates next alleges that his Pierce County trial counsel was ineffective in advising him to plead guilty to 13 murders in Spokane County prior to his Pierce County trial.

The prejudice Yates identifies is that the Pierce County jury considered the Spokane County murders in deciding whether to impose the death penalty. However, Yates cannot show that counsel’s performance was prejudicial, even assuming it was deficient. Accordingly, we dismiss this claim. ¶78 Yates was arrested in Spokane County on April 18, 2000. Richard Fasy was assigned as lead counsel for Yates in Spokane County.

In July 2000, the State and Yates began negotiating a plea agreement under which Yates would plead guilty and reveal the location of the body of an additional victim in exchange for a sentence of life without the possibility of parole. Yates has stated that he intended “to admit responsibility for all of my crimes and to accept a sentence of life in prison without the possibility of parole.” Am. Pers. Restraint Pet. & Supporting Br., Ex. W at 1.

Initially, the Spokane County prosecutor and Yates believed that this would apply to all of Yates’s murders, including those that occurred in Pierce, Skagit, and Walla Walla Counties. In mid-July, Pierce County notified Spokane County that it was filing an information charging Yates with two counts of aggravated first degree murder. Roger Hunko was appointed to represent Yates in Pierce County at that time. The Spokane County plea bargain remained on the table. Ultimately, Yates went through with the plea bargain in Spokane County.

Hunko advised Yates to plead guilty in Spokane County, but the evidence is conflicted as to whether Hunko merely “agreed with Mr. Yates and his Spokane attorneys,” id. Ex. A at 2, Ex. W, or the Spokane County attorney “deferred to Mr. Hunko’s judgment,” id. Ex. V at 2. In any event, Hunko “did not consider the possibility of seeking a continuance or stay of the consolidated Spokane County cases, so that the Pierce County cases would be tried first.” Id. Ex.

A at 2. ¶79 In essence, Yates was left with two options that would serve his stated goals: (1) plead guilty in Spokane County and then face trial in Pierce County or (2) delay pleading guilty in Spokane County until the Pierce County trial was concluded. Both options entailed risks. The risks of the first option — the one Yates pursued — are quite apparent.

By pleading guilty to 13 counts of murder in Spokane County before facing trial in Pierce County, Yates made it easier for the State to demonstrate the existence of a common scheme or plan and the evidence of his Spokane County murders was admissible during the penalty phase. This risk was mitigated, to some degree, by the possibility of arguing in Pierce County that equitable estoppel precluded the State from seeking the death penalty, see 14 VRP at 627-788 (holding an evidentiary hearing on the applicability of equitable estoppel).

The first option also provided a key benefit — it removed the possibility of the death penalty for 13 of Yates’s murders. The second option also presented certain risks. The chief risk of the second option was that Spokane County might change its mind and seek the death penalty for the 13 cases it continued to handle. See State v. Wheeler, 95 Wn.2d 799, 805, 631 P.2d 376 (1981) (“[A]bsent a guilty plea or some other detrimental reliance by the defendant, the prosecutor may revoke any plea proposal”).

This would have been especially concerning had Yates been convicted in Pierce County, regardless of whether the death penalty was imposed, because Spokane County would have had an easier time proving the existence of a common scheme or plan. ¶80 Even assuming arguendo that Hunko’s performance was deficient, Yates cannot establish prejudice. Had Hunko investigated all plausible options, he would have been faced with the strategic decision discussed above. Yates has provided no evidence that Hunko would have advised Yates differently.

In addition, Yates has provided no evidence that Spokane County would have agreed to any proposed delay or that a court would have granted the delay over the County’s objection. As a consequence, he has not demonstrated “a reasonable probability” that absent the deficient performance the result would have been different. Strickland, 466 U.S. at 694. 3. Life Qualification (Claim 17) ¶81 Yates contends that trial counsel provided ineffective assistance during voir dire because counsel failed to employ the “Colorado method.” Pet’r’s Reply Br. at 55.

Yates claims that there is a reasonable probability that this deficiency resulted in a jury that excluded qualified jurors and/or included jurors who would automatically vote for death upon a finding of guilt or would be unable to consider mitigating evidence. In support of his claims, Yates has included an affidavit from Matthew Rubenstein, the former director of the Oregon Capital Resource Center. ¶82 The Colorado method is one approach to selecting a capital jury.

According to Rubenstein: The “Colorado Method” of capital jury selection requires the defense team to utilize the juror questionnaire and voir dire to identify the prospective juror’s views about the death penalty, question the juror in a manner to establish a record to create a legal basis with which to advance cause challenges to state-favored pro-death jurors and to defend state cause challenges to defense-favored pro-life jurors, and then question the juror in a manner to determine and confirm the juror’s capacity and commitment to making the penalty phase sentencing determinations in a constitutionally legitimate and appropriate manner.

Am. Pers. Restraint Pet. & Supporting Br., Ex. AA at 3. Yates further explains, in his reply brief, that under the Colorado method, “[a] juror’s attitudes about the death penalty are the only criteria for selection.” Pet’r’s Reply Br. at 60. ¶83 Yates’s argument of deficient performance lacks merit. Yates relies on Rubenstein’s declaration in claiming deficient performance.

Rubenstein reviewed the voir dire transcript and juror questionnaires and concluded that trial counsel “in many instances failed to effectively utilize the strategy, methods, and techniques of Colorado-method life-qualification jury selection.” Am. Pers. Restraint Pet. & Supporting Br., Ex. AA at 4. Rubenstein, however, fails to identify any specific prospective jurors of whom additional questions should have been asked. Moreover, Yates’s presumption that the Colorado method is the only approach to jury selection that is constitutionally adequate lacks any support.

Indeed, it goes against the Supreme Court’s holding in Strickland: No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. 466 U.S. at 688-89. ¶84 Furthermore, the record establishes that trial counsel conducted an at least adequate voir dire.

For example, for almost every juror ultimately challenged for cause by the State, defense counsel elicited answers calculated to counter the State’s request. E.g., 33 VRP at 2078-81 (juror 26); 34 VRP at 2281-83 (juror 39); 35 VRP at 2413-15 (juror 52), 2427-30 (juror 14). Additionally, counsel actively sought to expose bias on the part of prospective jurors that appeared to favor the State. E.g., 32 VRP at 1865-66, 1876-77 (juror 9); 34 VRP at 2111-12, 2116, 2118-19, 2122 (juror 29), 2161-63 (juror 33).

Defense counsel also questioned jurors on their willingness to respect the views of others and ability to insist on respect for their own views. See, e.g., 38 VRP at 2841 (juror 89). Counsel was successful in having 15 jurors excused for cause. In light of counsel’s rigorous testing of jurors’ views, it cannot be said, in the abstract, that counsel’s performance was deficient in conducting voir dire on prospective jurors’ views on the death penalty. Yates fails to make any specific claims of ineffective assistance.

Because it fails to specify a single instance of deficient performance, Rubsenstein’s declaration does not provide prima facie evidence of deficient performance by counsel. Therefore, Yates necessarily fails to establish his ineffective assistance of counsel claim. ¶85 In sum, we dismiss claims 1, 10, and 17, relating to ineffective assistance of counsel. Yates shows only one instance of deficient performance but cannot establish prejudice arising from that instance. G.

Opportunity To Give Mitigating Evidence Meaningful Effect (Claims 18-21) ¶86 Yates raises four claims related to the statutory question posed to the jury during the penalty phase of trial. RCW 10.95.060(4) required the jury to consider the following question: “ ‘Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?’ ” Yates claims that this question unconstitutionally requires a nexus between the crime and the mitigating circumstances.

In addition, Yates claims that the prosecutor impaired his constitutional rights by arguing that the jury should disregard mitigating evidence that lacked a nexus to the crime. Yates also claims that he was denied effective assistance of counsel when trial counsel failed to object to such arguments and when appellate counsel failed to assign error to this line of argument. ¶87 The Eighth and Fourteenth Amendments require, in a capital case, that the sentencing jury be “permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence.” Abdul-Kabir v.

Quarterman, 550 U.S. 233, 264, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007). “Mitigating evidence” is broadly defined to include any evidence that “the sentencer could reasonably find . . . warrants a sentence less than death.” McKoy v. North Carolina, 494 U.S. 433, 441, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). This constitutional requirement may be violated by statutes, Woodson, 428 U.S. at 303-05; jury instructions, Penry v. Lynaugh, 492 U.S. 302, 328, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.

Ed. 2d 335 (2002); or even prosecutorial argument, Abdul-Kabir, 550 U.S. at 259 n.21. The test to determine whether this constitutional requirement has been violated is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). Mitigating evidence is constitutionally relevant evidence. See Abdul-Kabir, 550 U.S. at 262-63; McKoy, 494 U.S. at 441.

As Yates correctly argues, requiring a nexus between the crime and the mitigating evidence is constitutionally prohibited. Tennard v. Dretke, 542 U.S. 274, 287, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004). ¶88 Yates’s sentencing jury received three instructions relating to mitigating circumstances. Instruction 3 informed the jury of the burden and standard of proof as well as the consequences of its determination: During this sentencing phase proceeding, the State has the burden of proving to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.

If the State meets this burden the death penalty will be imposed. The defendant does not have to prove the existence of any mitigating circumstances or the sufficiency of any mitigating circumstances. The defendant is presumed to merit leniency which would result in a sentence of life in prison without possibility of release or parole. This presumption continues throughout the entire proceeding unless you find during your deliberations that it has been overcome by the evidence beyond a reasonable doubt. Clerk’s Papers (CP) at 4444.

Instruction 4 provided the jury with the question it was tasked with answering: The question you are required to answer is as follows: Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency? If you unanimously answer “yes”, the sentence will be death. If you unanimously answer “no”, or if you are unable to agree on a unanimous answer, the sentence will be life imprisonment without possibility of release or parole. Id. at 4445.

Finally, instruction 5 defined the term: A mitigating circumstance is a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense. The appropriateness of the exercise of mercy is itself a mitigating factor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted.

You are also to consider as mitigating circumstances any other factors concerning the offense or the defendant that you find to be relevant, including, but not limited to, the following: Whether there is a likelihood that the defendant will pose a danger to others in the future. Id. at 4446. 1. Constitutionality of the Statutory Question ¶89 Yates first claims that the statutory question is unconstitutional because it requires a nexus between the mitigating evidence and the crime.

Specifically, Yates argues that the introductory phrase — “ ‘Having in mind the crime [of which the defendant has been found guilty]’ ”— “qualified and narrowed the jury’s use of mitigating circumstances in reaching its penalty decision.” Am. Pers. Restraint Pet. & Supporting Br. at 108.

As a result, Yates contends that there was a reasonable likelihood “that the jury would conclude that it needed to find a nexus between any ‘mitigating circumstances’ and ‘the crime’ in order to give weight to those mitigating circumstances.” Id. at 107-08. ¶90 To the contrary, the statutory question, fairly read, does not require a nexus between mitigating circumstances and the crime.

The term “mitigating circumstance” is broadly defined to include “a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense.” CP at 4446 (emphasis added). The statutory question directs the jury to determine whether the State has disproved the presence of sufficient mitigating circumstances to merit leniency.

In making this determination, the jury is to “[h]av[e] in mind the crime of which the defendant has been found guilty.” Id. at 4445. This is an appropriate consideration; the Supreme Court has made clear that the principle underlying the mitigation phase of a capital trial is that “punishment should be directly related to the personal culpability of the criminal defendant.” Penry, 492 U.S. at 319. In order to consider an individual’s culpability, the jury must necessarily have in mind some culpable act.

Reading the instructions as a whole, there is no reasonable likelihood that the jury would have believed it could not consider mitigating evidence that lacked a nexus to the crime. Indeed, we upheld this same statutory question in State v. Cross, 156 Wn.2d 580, 604-05, 615, 132 P.3d 80 (2006). ¶91 Because the State is correct on the merits, it is unnecessary to consider its argument that this claim is barred by the invited error doctrine. 2.

Prosecutorial Misstatement Claim ¶92 Yates next argues that even if the statutory question posed to the jury was constitutional, the prosecutor’s closing argument prevented the jury from giving meaningful effect to Yates’s mitigating evidence. The United States Supreme Court has explicitly identified prosecutorial arguments as a source of concern: “Prosecutors in some ... cases” have taken “pains to convince jurors that the law compels them to disregard the force of evidence offered in mitigation.” Abdul-Kabir, 550 U.S. at 261.

At the same time, “prosecutorial misrepresentations ... are not to be judged as having the same force as an instruction from the court.” Boyde, 494 U.S. at 384-85. Moreover, in Abdul-Kabir, where the Court expressed particular concern about prosecutorial arguments, the language of the jury instruction, standing alone, appeared to preclude consideration of mitigating circumstances. 550 U.S. at 237-38. ¶93 In the present case, the prosecutor incorrectly stated the law during a brief portion of rebuttal closing argument.

The challenged argument is as follows: Instruction No. 5 is extremely important because the definition of “mitigating circumstance” is not as broad as counsel would lead you to believe. It says that it is a fact about the crime, the offense, or a fact about the defendant which in fairness or in mercy extenuates or reduces the degree of moral culpability or justifies a sentence of less than death. When you are thinking about what counsel has argued to you as mitigating evidence, you need to put it in this instruction.

You need to see, what is there about the fact that the defendant served in the military that in fairness or mercy somehow extenuates or reduces his moral culpability for the death of Melinda Mercer or the death of Connie Ellis. What is it about that that justifies a sentence less than death for these murders? How does the fact that he was a pilot relate logically to the defendant’s moral culpability for killing these two women? 77 VKP at 8290-91 (emphasis added). The problem with the prosecutor’s argument is that mitigating evidence need not “relate logically” to the defendant’s moral culpability.

For example, a defendant’s good behavior in prison is miti

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